Mr MURPHY (9:06 PM) —I speak tonight on an issue of great importance to the House of Representatives—the management of government business in this House. During the 39th Parliament the opposition was highly critical of the government's management—or, more properly, mismanagement—of government business in the House. Moreover, there is a sad history and practice of the previous government failing to abide by what A.V. Dicey, in his 1908 text, calls `constitutional conventions', relating to the way in which government business is administered in this House. The bad habits of the 39th Parliament are being repeated in this 40th Parliament, as the first weeks of government business reveal.

Whilst there are many examples of flagrant abuse of non-compliance with constitutional convention, I will simply cite one example of particular audacity and temerity. I refer to the introduction last week into the House of five bills dealing with very serious and complex issues associated with Australia's security. I note that it took the government over six months to introduce these bills, whilst affording the opposition only 16 hours to consider them. What is the significance of the government's conduct in this matter? To answer this question, we need to remind ourselves of what our Westminster system directs in terms of the laws and constitutional conventions governing the business of the House.

I first refer to the House of Representatives Practice. This issue goes to the core of responsible government: what is responsible government? The word `responsible' is a concatenated word in two parts: `response' and `able'. To be responsible then is to be able to respond. In order to respond I must have something to respond to. I cannot respond in a vacuum, nor can I respond to silence. To be able to respond, I must have the capacity to do so. I cannot respond, even if I want to, if I do not know or am incapable of responding. This government is abusing accepted conventions relating to government business in this House in such a way as to thwart any hope of a responsible reply from the opposition. In doing so, this government has realised the worst fears of noted jurisprudence and political science commentators on the operation of the Westminster system of this House—in particular, the fundamental doctrines of jurisprudence, including the separation of powers doctrine as espoused by Montesquieu in 1748 in the work, L'Esprit des Lois.

The separation of powers doctrine has become a cornerstone of the Westminster system and is of critical importance to the issue of responsible government and, in particular, the issue of the ordering of government business. What is this critical connection between the separation of powers doctrine and the ordering of government business in this House? In answering this question I again refer to the House of Representatives Practice at page 42. I wish to quote from this text in showing how the worst fears of the author have become realised by the conduct of the coalition government. It states:

However, the House of Representative Practice warns:

Most importantly, the text advises in the strongest terms at page 43:

The executive is selected from the party in power in appointing ministerial portfolios. The executive and council is chaired by the Governor-General, but it is the parliamentary executive that really runs the country, as the Governor-General acts substantially on the advice of his or her ministers. I now turn to the fundamental issue of constitutional conventions. The constitutional conventions are defined in the House of Representatives Practice at page 46, citing L.F. Crisp's text Australian National Government, 5th edition at page 352, which states that constitutional conventions are:

Professor Gordon Reid, in his text The Double Dissolutions and Joint Sitting Commentaries from page 244 of former Labor minister the Hon. Gareth Evans's text Labor and the Constitution, 1972-1975, makes this observation on the application of constitutional conventions:

I will direct my observations to only one of the several areas where Professor Reid notes the constitutional law is silent: that of parliamentary control. For it is in this area of constitutional silence that is the source of the mismanagement by the Leader of the Government in this House through total ignorance or non-application of constitutional conventions which, in turn, has led to the prostitution of government business in this House. I draw to the attention of this House the constitutional conventions relating to that part of the House of Representatives Practice titled `Parties and their effect on the House'. I quote:

In short, the government stands condemned for flagrantly disregarding this constitutional convention that has existed for over 50 years in this House. The dumping of five very important bills on the opposition in the House last week with very little time for us to respond made this an impossible situation for the opposition to effectively contribute to this legislation. Whilst the government may feel smug about the utter dishonesty it exhibits by its contempt for this constitutional convention, the Leader of the Government's conduct strikes at the very heart of the following fundamental principles of our democracy: the application of the constitutional convention is fundamentally compromised; the Westminster system of responsible government is fundamentally compromised; and the ability of the opposition to effectively organise is fundamentally compromised.

These observations raise a further constitutional convention of direct relevance: that of party committees and meetings, which are directly referenced at page 54 of the House of Representatives Practice. You, Mr Deputy Speaker Adams, as a member of the Labor Party determine responses to government business through our party committee and policy meetings. For the Labor Party caucus and caucus committee, meetings are held. House of Representatives Practice notes:

Put simply: if the opposition is denied access to government business in the prescribed way, and not supplied with this information within a reasonable time, then the very foundations of our democratic system are fundamentally debauched.

On the basis of these facts, I put to the Leader of the House that the administration of government business is all of the following. Firstly, it is oppressive, for it denies adequate consultation with the opposition, which holds a legitimate expectation based on the constitutional conventions that have existed since 1951 that it will be consulted in a timely manner. Secondly, it is tyrannical in that this maladministration denies accountability to the opposition party in our Westminster system, thus denying adequate debate on bills put before this parliament. Thirdly, it is unjust in that justice demands that `each is to be given their due'. The 1951 constitutional convention relating to adequacy of notice from the government party to the opposition party—a convention that has been in use in this House for more than 50 years—generates a reasonable and legitimate expectation that convention raises justice issues to what the opposition is owed to them: the timely notification of justice business. To deny the operation of that convention is thus a fundamental breakdown of governance in this House.

Fourthly, it is capricious because it demonstrates the whimsical nature of the agenda setting by this government. Fifthly, it is arbitrary in that it denies consistency in agenda setting and engenders an environment of uncertainty and confusion within the ordinary affairs of government. It is as if this House is now incapable of `getting its act in order'. It is certainly my own observation that the government business is in a shambles and clearly incapable of managing its affairs in an orderly and dignified manner. It appears that the Leader of the House has exceeded his level of competency, demonstrating that he is incapable of the task that has been visited upon him. Sixthly, it is biased in that the Manager of Government Business not only sets an agenda of his own making but denies any opportunity for reasonable time for preparation from the opposition on the bills put before it.

I now put to the government these tenets of accountability. One, it is reasonable that the constitutional conventions be applied with probity, predictably and in a disinterested manner. Two, it is reasonable to expect the Westminster system to continue to operate with an organised government and opposition working in this House to the mutual advantage of the good operations of responsible government and for the benefit of its citizens, to whom we are ultimately accountable. Three, it is reasonable to expect responsible government to be allowed to operate efficiently and in conformance with constitutional conventions that have prevailed in this House for over 50 years. Four, it is reasonable that the executive of the Commonwealth, the Governor-General, be called on to play a constructive role in the resolution of disputes in the administration of this House, particularly in relation to the timely support of government business to the opposition party.

In support of this last proposition, I refer to P.J. Hanks's Australian Constitutional Law—Materials and Commentary, which deals with the topic of the role of the executive and, in particular, the operation of the executive during the constitutional crisis of the Whitlam dismissal and decisive intervention into the political dispute between government and opposition. Hanks notes that there is a role for the executive to intervene if it is clear that the dispute threatens to disrupt good government or violate fundamental rules of jurisprudence or democracy. I believe we have reached that point with the administration of government business in this House tonight, as it threatens both our jurisprudence and democracy. The 16 hours given was simply not enough time in which to permit the opposition to order its affairs and deliberate on five bills dealing with the complexity of issues surrounding border protection and Australia's security.

So too the text by Anson states:

This government has ignored the constitutional conventions, relying more on the strict legality of a situation. This is not a tenable position from which to run government. This is a serious development in the governance of the parliament of Australia. The repercussions mean that this government has seen fit to deny the operation of constitutional convention. This means that a new era of capricious, arbitrary, tyrannical and unjust governance has gripped this government for its own privative ends. This government seeks to deny the good operation of democratic process, preferring a power that is neither just nor valid.

Far from the belief that rules of governance ought not be rigid but progressive and flexible, the scenario is now clear that the executive is the parliamentary executive—represented by the front bench of the Liberal-National parties. They act with impunity in fulfilling the wrongful words of Chief Justice Barwick and the former Governor-General, Sir John Kerr, who asserted on the notion of responsibility:

We see in the attitudes expressed by the Liberal-National coalition's philosophy, as demonstrated by their conduct in the business of this House in the time of the 40th Parliament, a rejection of the Westminster system and a rejection of the separation of powers doctrine. In doing so, they are following the same lines as Barwick and Kerr. They are doomed to repeat the mistakes of history. For their sins, we must all pay the price of the loss of democracy—and that is too high a price to pay.

This government repeats the history of mistakes of Governor-General Kerr in meddling and interfering with well-established constitutional conventions that have served this House so well for 50 years. In the words of Hanks, it is:

that lies at the heart of the problem of how this House is currently being mismanaged. For it is the confusion that the government leader has thrown this House into which lies at the heart of the problem. His capricious reshuffling of government business wreaks havoc on the opposition's ability to probatively and properly deal with the business put to this House. The result of such a view of this government is that it thinks it is somehow immune to the executive. Therefore, the time is reached where the role of the executive has become perhaps too intertwined with the role of the parliamentary executive and, in particular, the government party. The government executive and the official executive have largely become synonymous, and that is a dangerous thing and ultimately fatal to the operation of government in the Commonwealth of Australia.

In concluding, the order of business in this House must be afforded greater certainty, greater predicability and greater political responsibility. It is time the Governor-General considered how administration of government business can be more properly made accountable, predictable and just. The present government's administration of government business in this House has caused confusion throughout the House and in the eyes of the public. In doing this it is, I believe, slaughtering the public interest. Finally, if government business mismanagement continues in this way then further breaches of, or instances of disregard for, constitutional convention are likely to occur in the future, with even more corrosion on the effect of governance and probity. It is time this government's practices were put to an end.